2021 IL App (1st) 192062
Ill. App. Ct.2021Background
- Police stopped a vehicle for a traffic violation; Kesyon Heard was the driver and there was a front-seat passenger.
- Officer Szczur observed a knotted plastic bag protruding from the center console; Heard removed and handed the bag to the officer.
- Body-worn camera shows Heard calling the bag "dust" or "old dust" (some mumbling is unintelligible); Szczur testified he suspected the bag contained MDMA based on appearance and training.
- At a suppression hearing Szczur gave inconsistent testimony about whether Heard said "dust" or "ecstasy;" the video itself shows Heard saying "dust" and also saying the bag "was in the car already."
- The bench trial judge found Heard guilty, reasoning Heard acknowledged the bag was "dust" (which the judge treated as a street name for ecstasy); the judge later repeated that belief in denying a new-trial motion.
- The appellate court held the judge had misremembered testimony (no evidence that "dust" meant MDMA), reversed the conviction, and ordered no remand because retrial would violate double jeopardy due to insufficient evidence of knowledge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial judge relied on facts not in evidence, denying due process | Judge permissibly relied on testimony and his observations to conclude Heard knew the bag contained drugs | Judge misremembered evidence; no testimony established that "dust" meant MDMA, so reliance on that belief denied due process | Reversed: judge misremembered crucial testimony; relying on that unsupported finding violated due process |
| Whether the meaning of slang ("dust") could be judicially noticed | State implied judge could rely on common knowledge/street terms to interpret "dust" | Defense: meaning must be established by evidence; judge may not judicially notice slang without proof | Court held judge could not treat slang meaning as judicial notice absent evidence; State offered no proof that "dust" meant ecstasy |
| Whether the evidence sufficed to prove knowledge/possession | State: bag was in plain view near Heard and looked like narcotics; lab confirmed MDMA, supporting possession conviction | Defense: no evidence Heard knew nature of substance, no evasive conduct or paraphernalia, small quantity | Court found no evidence Heard knew bag contained narcotics; conviction unsupported and insufficient evidence prevents retrial (double jeopardy) |
| Remedy: retrial vs. acquittal | State likely sought remand for new trial | Defense sought reversal and bar to retrial | Court reversed and did not remand; retrial barred by double jeopardy because evidence was insufficient |
Key Cases Cited
- People v. Mitchell, 152 Ill. 2d 274 (1992) (bench trial determinations must be limited to record evidence; private knowledge denies due process)
- People v. Dunn, 326 Ill. App. 3d 281 (2001) (judge’s private investigation or knowledge untested by evidence denies due process)
- People v. Woods, 214 Ill. 2d 455 (2005) (State must prove defendant knew of presence of controlled substance to establish possession)
- People v. Taylor, 76 Ill. 2d 289 (1979) (double jeopardy bars retrial when evidence is insufficient to support conviction)
- Wolfe v. Menard, Inc., 364 Ill. App. 3d 338 (2006) (preservation of issues raised promptly after judgment)
- United States v. Farrington, [citation="783 F. App'x 610"] (7th Cir. 2019) (timing for preservation of post-trial challenges)
- In re Marriage of Alltop, 203 Ill. App. 3d 606 (1990) (appellate consideration of sufficiency to avoid double jeopardy on remand)